Indiana Protection & Advocacy Services

Procedural safeguards are a set of rules and procedures that are part of both federal and state regulations that define and protect the rights of parents and their child with disabilities, as well as, give parents, school personnel and service providers a mechanism for resolving disputes.

A copy of the notice of procedural safeguards must be provided to the parent of a student with a disability one time a school year. The notice must also be provided to the parent upon:

• Initial referral or parental request for evaluation;• Receipt of the first filing of a complaint under 511 IAC 7-45-1 in a school year;• Receipt of the first due process hearing request under 511 IAC 7-45-3 in a school year;• The date the public agency decides to make a removal that results in a disciplinary change of placement under 511 IAC 7-44-2, which includes removals to interim alternative education settings for:

o Weaponso Drugso Serious bodily injury; under 511 IAC 7-44-6

• Request by a parent

Does the IDEIA place a statute of limitations on when a due process complaint can be filed?

While parents are permitted under to file due process complaints any time they feel that their child's rights under IDEA have been violated, complaints must be filed no later than two years after the parents knew or should have known about the alleged action that forms the basis for the due process hearing.

Are there exceptions to the statute of limitations?

IDEA also provides exceptions to protect rights of children and their families. If a local educational agency falsely claims that it has resolved the complaint, or withholds information it was required to provide, the two-year statute of limitation does not apply.

What is the due process notice?

This official complaint from the parent about their child's individualized education program or services provided under IDEIA alleges a due process violation under IDEA. The notice sent to the SEA must include the name and home address of the child, name of the child's school, a description of the nature of the problem, and a proposed resolution. The party presenting the complaint must file this notice before a due process hearing can occur.

What actions must the LEA take when it receives a due process notice?

The LEA must provide a response to the parents within ten calendar days of receiving the due process notice indicating:

An explanation of why the agency proposed or refused to take the action raised in the due process hearing request;

A description of other options that the CCC considered and the reasons those options were rejected;

A description of each evaluation procedure, assessment, record, or report the agency used as the basis for the proposed or refused action; and

A description of other factors that are relevant to the public agency's proposed or refused action.

What if the LEA believes the due process notice is not sufficient?

The LEA must notify the hearing officer in writing within 15 days of receiving the complaint. Hearing officers then have up to five days to determine if the notice meets the requirements, and to notify all parties in writing of the decision.

If the hearing officer determines that the complaint is sufficient, the LEA must respond to the complaint.

Does IDEIA allow a party to amend its due process notice after the notice has been delivered to the hearing officer and other party?

The due process complaint notice may be amended if the other party consents to the amendment in writing and is given the opportunity to resolve the complaint through the resolution session. The hearing officer may also allow a due process notice to be amended, but only if the amendment is made more than five days before the due process hearing. When a due process complaint is amended, the applicable timeline for a due process hearing begins again when the party files the amended notice.

What requirements apply to a complaint?

When a parent files a complaint, the parent must provide the student's name and address, describe the nature of the problem, relevant facts relating to the problem, and a proposed resolution to the problem.

If the LEA feels that the complaint is not sufficient to inform them about the problem, the LEA has fifteen days from when the parent filed their complaint to ask a hearing officer to decide whether the complaint was sufficient.

The hearing officer has five days to make a determination that the complaint is sufficient. If the hearing officer decides that the complaint is not sufficient, the complaint is returned to the parent, with an explanation of how the complaint is insufficient, and the parent is able to file a new complaint with greater specificity and the timeline starts over once a new complaint is filed.

When is mediation allowed?

Mediation is defined as an attempt to bring about a peaceful settlement or compromise between parties to a dispute through the objective intervention of a neutral party. Mediation is an opportunity for parents and school officials to sit down with an independent mediator and discuss a problem, issue, concern, or complaint in order to resolve the problem amicably without going to due process. IDEA requires states to establish and implement procedures to allow parties to resolve disputes through a mediate process. Any dispute, including matters that arise prior to the filing of a formal complaint, are eligible for mediation. Mediation can be initiated at any time, if both parties agree, to expedite the development of a solution.

What requirements must states meet in developing mediation procedures?

First, mediation must be voluntary for both parties. Second, mediation may not be used to deny or delay a parent's right to a due process hearing, or to deny other rights guaranteed under IDEA. And, third, a qualified and impartial mediator who is trained in effective mediation techniques must conduct mediation.

How does IDEA make mediation a viable alternative to parents and schools?

IDEA requires states to pay for the mediation process and to maintain a list of qualified mediators who are knowledgeable about the laws and regulations pertaining to the provision of special education and related services. The state must also ensure that each mediation session is scheduled in a timely manner and held in a location that is convenient for the parties involved.

Does mediation produce a legally binding resolution?

If the parties resolve the complaint, they must execute a legally binding agreement. The agreement explains the resolution and states that all discussions that occurred during the mediation process will remain confidential and may not be used as evidence in any subsequent due process hearing or civil proceeding; contains signatures from both the parent and a representative of the state or local educational agency who has the authority to legally bind the agency; is enforceable in any state court of competent jurisdiction or in a U.S. district court.

What is the impartial due process hearing?

Whenever parents or the LEA file a complaint related to the provision of special education and related services to a child with a disability, the party filing the complaint has the opportunity for this hearing. The hearing is conducted by the state educational agency (SEA) or LEAand is meant to provide the parties a fair, impartial venue for resolving the issues contained in the complaint.

What is the resolution session?

A resolution session is a new provision created under the 2004 IDEA reauthorization, which provides an opportunity for parents and local educational agencies (LEAs) to resolve any issues in the complaint in an efficient and effective manner so that parents and LEAs can avoid due process hearings and provide immediate benefit to the child. Within 15 calendar days of when a complaint is filed, and prior to a due process hearing, the LEA must convene a resolution session between the parents and the relevant members of the IEP Team who have specific knowledge of the facts contained in the complaint (as determined by the LEA and the parents).

The resolution session must include a representative of the LEA who has decision-making authority on behalf of the agency, but may not include an attorney for the LEA unless an attorney also accompanies the parent. The session provides an opportunity for the party who filed the complaint and the facts forming the basis of it, and an opportunity for the responding party to resolve the complaint.

If the parties reach agreement through this process, they must execute a legally binding agreement that is signed by the parents and a representative of the LEA with the authority to legally bind the LEA, and that is enforceable in any state court of competent jurisdiction or district court of the United States. Either party may void the agreement up to three days after its execution.

In the event the complaint is not resolved through this process, the parties may then proceed to a due process hearing. The parties may agree not to conduct the resolution session if both agree in writing or decide to use mediation.

What topics may be covered during the due process hearing?

The due process hearing is limited to those issues covered in the complaint. The party requesting the hearing can only raise other issues if the other party agrees. The party filing the complaint should consolidate multiple issues into one complaint when possible.

Who presides over the due process hearing? What qualifications must he or she meet?

An impartial hearing officer presides over the due process hearing. The hearing officer must not be an employee of the state or local educational agency involved in the education of the child and must not have a professional or personal interest that conflicts with his or her objectivity in the hearing. The hearing officer must know and understand IDEA, federal and state regulations pertaining to IDEA, and legal interpretations of IDEA by the courts. and be able to conduct hearings and render decisions in accordance with standard legal practice.

What does a hearing officer base his or her decision on?

A hearing officer's decision should be made on oral or written evidencesubmitted at the hearing and is based on a whether the child received a free appropriate public education (FAPE). If the complaint alleges procedural violations, the hearing officer may find that the child did not receive a FAPE only if the procedural violations impeded the child's right to a FAPE, significantly impeded the parents' opportunity to participate in the decision making process regarding the provision of a FAPE for the child, or deprived the child of educational benefits. However, a hearing officer can order the LEA to comply with procedural requirements even if noncompliance does not result in a failure to provide a FAPE.

When a parent files a complaint, how long does the LEA or SEA have to resolve the complaint?

The LEA must convene the resolution session within 15 days of receiving a complaint. If the LEA has not otherwise resolved the complaint within 30 days of receiving it, the due process hearing may then occur.

Once the LEA has failed to resolve the complaint within 30 days a due process hearing is required, the SEA must conduct the hearing and mail a written copy of the hearing officer's final decision to all parties involved. Attorney's fees are not reimbursed for work related to the resolution session.

How long does a party have to request a hearing after the alleged violation occurs?

The party requesting the hearing must submit the request within two years of when the alleged violation occurred. If state law provides for a different timeline, the state law prevails. The timeline does not apply to parents if the LEA falsely claims that it has resolved the complaint or withholds information it was required to provide.

Does the due process hearing preclude a party from filing a civil action in court?

Any party who disputes the final decision of the hearing officer may bring a civil action in any state court of competent jurisdiction or in a U.S. district court any party not satisfied with the decision of the independent hearing officer can appeal within 30 days to the State Board of Education Appeals Board who has 3 days to issue a decision. If a party is not satisfied with the decision of the State Board of Appeals, they can then file suit in court. The party bringing the civil action has 30 days from the date of the State Appeals Board's final decision to file the claim, unless state law prevails.

Can a court award attorney's fees to the prevailing party in a civil action?

U.S. district courts may award reasonable attorney's fees to prevailing parties (parents, SEAs or LEAs) as part of any settlement of a due process complaint or civil action. Attorney's fees granted to SEAs or LEAs may only be granted under certain guidelines. First, the parents' attorney may be forced to pay the agency's attorneys' fees when that attorney files a complaint or civil action that is frivolous, unreasonable, or without foundation, or continues to pursue a civil action after the litigation clearly became frivolous, unreasonable, or without foundation. Second, the parents, or their attorney, may be forced to pay the SEA's or LEA's attorneys' fees if the parents' complaint or subsequent civil action was presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

For what services may a prevailing party not be awarded attorneys' fees?

A court may not award attorneys' fees for any services performed subsequent to the time a written offer of settlement is made to the parents if:

The offer is made in accordance with Rule 68 of the Federal Rules of Civil Procedure;

In the case of an administrative proceeding, the offer is made more than 10 days prior to the hearing;

The offer is not accepted within ten days; and

The court or administrative hearing officer finds that the relief finally obtained by the parents is not more favorable than the offer of settlement.

Attorneys' fees may be awarded to parents who were substantially justified in rejecting the settlement offer. IEP Team meetings are not eligible for reimbursement unless the meeting is convened as a result of an administrative proceeding or judicial action, or, at the discretion of the state, for a mediation session. And, attorneys' fees for resolution session meetings are also ineligible for reimbursement.